IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 87,192
STATE OF KANSAS,
Appellee,
v.
LARRY DAVIS,
Appellant.
SYLLABUS BY THE COURT
1. Before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel's performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial.
2. Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.
3. With regard to the required showing of prejudice to the defendant in a claim of ineffective assistance of counsel, the proper standard requires the defendant to show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.
4. Both the performance and prejudice prongs of the ineffective assistance of counsel inquiry remain mixed questions of law and fact on appeal. Where the trial court has made findings of fact and conclusions of law, an appellate court determines whether the decision reached by the trial court follows as a matter of law from the facts stated as its basis and also whether the facts so stated have substantial support in the evidence.
5. A criminal defendant is incompetent to stand trial when, because of a mental illness or defect, the defendant is unable to understand the nature and purpose of the proceedings against him or her or where he or she is unable to make or assist in making a defense.
6. The failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent deprives him of his due process right to a fair trial.
7. Kansas legislatively abolished the insanity or diminished capacity defense with its enactment of K.S.A. 22-3220, which provides: "It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defense."
8. The record is examined and under the totality of the evidence the defendant was denied effective assistance of counsel and as a result was deprived of a fair trial.
9. K.S.A. 22-3220 does not violate the Due Process Clauses of the United States or Kansas Constitutions. As long as the prosecutor is required to prove beyond a reasonable doubt every element of the offense charged, due process is not violated. K.S.A. 22-3220 allows a defendant to present evidence tending to show that he or she lacked the mental state required for the offense charged.
10. The question of whether there is a violation of statutory and constitutional rights to a speedy trial is a matter of law over which this court has unlimited review.
11. The United States Supreme Court set forth a balancing test for determining whether an accused has been denied his or her constitutional right to a speedy trial in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). Kansas adopted this test and considers the following Barker factors in determining whether a defendant's constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) prejudice to the defendant.
Review of the judgment of the Court of Appeals in an unpublished opinion filed September 19, 2003. Appeal from Sedgwick district court, JOSEPH BRIBIESCA and REBECCA L. PILSHAW, judges. Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, reversed in part, and remanded with directions. Opinion filed March 19, 2004.
Paige A. Nichols, assistant appellate defender, argued the cause, and Steven R. Zinn, deputy appellate defender, was with her on the briefs for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J: This case comes before this court on the defendant's petition for review of the Court of Appeals' decision affirming his convictions and sentence for one count of aggravated kidnapping and one count of attempted rape in State v. Davis, No. 87,192, unpublished opinion filed September 19, 2003. Contrary to the Court of Appeals' decision, we conclude that defense counsel's inadequate representation of the defendant denied him a fair trial. We, therefore, reverse the defendant's convictions and remand for further proceedings.
The defendant was convicted in a bench trial on the November 9, 2000. He appealed, and based upon his motion, the Court of Appeals remanded the case to the trial court for a determination of his allegations regarding his claim of inadequacy of representation. Upon conclusion of a hearing pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), the trial judge rejected the defendant's claims of inadequacy of representation, and the case resumed before the Court of Appeals. Ultimately, the Court of Appeals affirmed his convictions of aggravated kidnapping and attempted rape and his sentence of 554 months of imprisonment. We granted the defendant's petition for review.
In his petition for review of the Court of Appeals' decision, the defendant advances the same claims he raised before the district court. He claims that appointed defense counsel provided ineffective assistance of counsel based upon the following deficiencies:
1. Counsel's failure to seek a pretrial competency evaluation.
2. Counsel's failure to understand and apply the law regarding the defense of mental disease or defect.
3. Counsel's failure to argue that the abolition of the insanity defense violates due process.
4. Counsel's failure to inquire into a speedy-trial violation.
5. Counsel's failure to make a specific objection to criminal history.
The defendant also raises as separate errors of the trial court the above issues 3, 4, and 5.
At the time of trial, defendant Larry Davis was a 49-year-old man who suffered from schizophrenia, had a history of assaultive behavior, and had been committed to psychiatric hospitals on 31 occasions since the age of 13.
The defendant was released from his most recent hospitalization in June 1999, 2 months before the event giving rise to the present charges. The defendant had been assigned a case manager to ensure that he was taking his medication, but by mid-August the case manager was unable to find him. On August 20, 1999, the defendant received a week's worth of medication; at trial he testified he had stopped taking the medication because it made him impotent.
During the early morning hours of August 24, 1999, the defendant invited the victim, M.R., and Dallas Keller to his apartment to have a beer. M.R. was not acquainted with the defendant, but Keller knew him so she accompanied Keller into the apartment.
Keller and the defendant went into the kitchen for a private conversation. The defendant told Keller that M.R. was his girlfriend, that "he was going to get some," and that he wanted Keller to leave for a little while. Keller obliged, walking out the door; M.R. attempted to follow Keller, but the defendant immediately closed and locked the door. The defendant took her wrist, pulled her into the kitchen, grabbed a knife, and held it to her neck. He told her he was going to rape her. M.R. screamed, "Oh, God, no," and tried to pull away to the front door.
Keller was seated outside the door of the apartment and heard M.R.'s screams. He pounded on the door and demanded that the defendant open the door, but the defendant told him, "Get the hell away from my door." Keller left to find help but returned by himself, knocked on the door, and said he was a police officer. The defendant still refused to open the door, so Keller called 911 and waited for the police.
M.R. continued screaming as the defendant pulled her toward the bathroom and cut open her shirt. Both of them ended up on the floor. The defendant straddled M.R, pinned her arms beneath his knees, and repeatedly punched M.R. in the face. At that time, two police officers knocked on the door and identified themselves. They heard a female inside who sounded like she was choking or gagging. The defendant told M.R. to go to the bathroom and warned her to be quiet. The defendant opened the door and told the officers that everything was okay and that he was just having an argument with his girlfriend. Noting that the defendant was only wearing jeans and sweating heavily, the officers asked the defendant to step outside his apartment and speak with them.
One of the officers observed M.R. standing inside the bathroom, holding a bra and shirt to cover her breasts. She was crying, had a swollen lip, and had red marks on her upper body. She told the officer, "He was trying to rape me." The defendant told the officer that M.R. had tried to rob him. The defendant was taken into custody and charged with aggravated kidnapping and attempted rape.
The defendant was initially found incompetent to stand trial and was transported to Larned State Security Hospital (Larned). Six months later, the defendant was deemed competent and trial proceedings resumed in May 2000. In August 2000, new counsel, Douglas L. Adams, Jr., was appointed to represent the defendant. In spite of mounting evidence of the defendant's incompetence, Adams did not request another competency evaluation prior to the November 9, 2000, bench trial. Moreover, Adams tendered an insanity defense that failed to apply K.S.A. 22-3220, which focuses upon a defendant's ability to form the necessary element of intent in the crimes charged. The defendant was convicted on both charges and sentenced to a controlling term of 554 months' imprisonment.
Upon appeal to the Kansas Court of Appeals, the defendant requested a hearing before the district court pursuant to Van Cleave, 239 Kan. 117, based upon his argument that his trial defense counsel had provided ineffective representation. The Court of Appeals granted his motion, stayed the appeal, and remanded the case to the district court for a Van Cleave hearing.
The Van Cleave hearing was presided over by the same judge who conducted the defendant's trial. The defendant presented evidence that he was incompetent to stand trial at the time of his bench trial and that he was suffering from a mental disease or defect at the time of the charged offenses which rendered him incapable of possessing the required criminal intent to engage in the charged offenses of aggravated kidnapping and attempted rape. The district court rejected the defendant's contentions, concluding that he was not denied effective assistance of counsel. The district court also concluded that the abolition of the insanity defense was not unconstitutional, that defendant's speedy trial rights were not violated, and that the defendant's sentence was legal.
Upon the continuation of his appeal, a majority of the Court of Appeals affirmed the district court's determination that the defendant was not denied effective assistance of counsel, and a unanimous Court of Appeals rejected the other arguments advanced by the defendant. Judge Lewis dissented on the issue of ineffective representation but agreed with the majority on the other issues raised by the defendant. We granted the defendant's petition for review.
Based upon the following analysis, we conclude that the defendant was substantially prejudiced by defense counsel's inadequacy of representation in (1) failing to seek a pretrial competency evaluation and (2) failing to understand and apply the correct law regarding the defense of mental disease or defect.
Standard of Review
"Before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel's performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial."
"Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."
"With regard to the required showing of prejudice to the defendant in a claim of ineffective assistance of counsel, the proper standard requires the defendant to show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury."
"Both the performance and prejudice prongs of the ineffective assistance of counsel inquiry remain mixed questions of law and fact on appeal. Where the trial court has made findings of fact and conclusions of law, an appellate court determines whether the decision reached by the trial court follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have substantial support in the evidence." State v. Orr, 262 Kan. 312, Syl. ¶¶ 1, 2, 3, 4, 940 P.2d 42 (1997).
(1) Counsel's failure to seek a pretrial competency evaluation
The defendant has a long history of multiple hospitalizations and treatment for psychosis and disorganized/aggressive behavior. He was first treated at age 13 after threatening an individual with a pistol and was diagnosed with "borderline schizophrenic reaction." Throughout the following years, he has been hospitalized on over 30 occasions, some of them brief stays, others lasting for months, and one lasting for 7 years. His past diagnoses include schizophrenia, bipolar disorder, schizoaffective disorder, antisocial personality disorder, and borderline intellectual functioning.
Public Defender Terry Beall originally represented the defendant after he was arrested and charged on August 25, 1999. Shortly thereafter, the defense filed a notice to rely on an insanity defense and the related defense of diminished capacity and a motion to determine competency. On September 24, 1999, the court ordered the staff at Sedgwick County Mental Health (COMCARE) to determine whether the defendant was competent to stand trial; however, this evaluation was not conducted until November 1, 1999.
In the meantime, Beall engaged Dr. William Logan, a psychiatrist, to conduct a competency evaluation of the defendant in the Sedgwick County Jail on October 15, 1999. This evaluation included a 1-hour interview, review of the defendant's prior psychiatric records, the complaint, affidavits, and police reports relevant to this case. In addition to competency, Dr. Logan's report related to the defendant's ability to form the intent required in the offenses charged. Regarding his competency to stand trial, Dr. Logan concluded:
"Currently, he can work with his attorneys in the preparation of a defense and has an accurate understanding of the charges against him. Caution must be exercised, however, as Mr. Davis' illness is not well controlled on medication, and his paranoia, and psychotic thinking could easily escalate during the course of a trial. Based on his current ongoing symptoms and his history of decompensation under stress, it is unlikely he will be able to maintain his current level of capacity to stand trial through the stress of court proceedings."
On November 1, 1999, Dr. Margaret M. Weilert, a clinical psychologist at COMCARE, conducted a 2-hour interview with the defendant at the Sedgwick County Jail. Lauree Lusk, ARNP, advised Dr. Weilert that the defendant had been inconsistent in taking his prescribed medications, which are commonly used in the treatment of psychotic patients.
During the assessment of his competency to stand trial, the defendant was able to define competency and correctly name the charges and sources of the allegations against him. However, his first answer was closely following by tangential accounts of the "'animals'" in the detention system. When asked about evidence, he became more tangential and incoherent. When asked about possible consequences if he was found incompetent, he replied, "'[D]on't compute, don't compensate.'" He had extreme difficulty naming plea bargaining options, and his assessment of events leading up to his arrest were presented in a tangential, disorganized manner precluding comprehension.
The defendant correctly named and identified his attorney and gave adequate accounts of the roles and responsibilities of major courtroom personnel. However, he evidenced paranoia and distrust of the legal system, and when asked to describe the functions of witnesses, he responded, "'Clowns that come to the courtroom and want citizenship and citizen's arrest.'"
Dr. Weilert concluded that the defendant was incompetent to understand the nature and purpose of the proceedings against him and to assist in making his defense. While the defendant demonstrated some comprehension of the legal proceedings, "his unpredictable psychotic thought distortions, along with a pervasive paranoid delusional system, could seriously impede his ability to assist in making his defense."
After a November 10, 1999, hearing, the district court found the defendant was incompetent to stand trial and committed the defendant to Larned in an order filed on November 22, 1999. He was not transported to Larned until February 2, 2000.
While at Larned, Dr. Jean-Daniel Policard, a psychiatrist, (along with a social worker and psychologist) evaluated the defendant and submitted a forensic evaluation report dated April 24, 2000, which found the defendant competent to stand trial. Dr. Policard noted that the defendant had refused to comply with his medication regimen while in the county jail, but he had since reluctantly complied with his medication regimen, showing gradual but only modest improvement. The defendant had displayed episodes of verbal and physical hostility, threatened to strike staff members, and struck a social worker on the face several times when his request for money and cigarettes was not granted.
During the psychiatric evaluation, the defendant admitted to having a mental illness which he described as "schizophrenia with auditory hallucinations," and he acknowledged the need for medication. The defendant was diagnosed with schizoaffective disorder, bipolar type, antisocial personality disorder, and borderline intellectual function.
The defendant was aware of the nature and seriousness of the charges brought against him, as well as the respective roles of the major participants in the courtroom. He stated the judge "[s]entences, makes plans and disposition," the district attorney "prosecutes and tries to find me guilty," and the defense attorney "defends me." He defined plea bargain as "you confess to something and you get less time or parole," and he understood that he should "communicate with my lawyer" who would speak on his behalf. The evaluating team concluded that the defendant had a fair understanding of the legal proceedings against him and would be able to assist his attorney in presenting a legal defense. The defendant was returned to the Sedgwick County Jail on April 27, 2000.
After a May 10, 2000, hearing, District Judge Rebecca L. Pilshaw filed an order on May 18, 2000, finding the defendant competent to stand trial and ordering the proceedings against the defendant to be resumed. On August 29, 2000, the district court appointed Richard Ney's law office to represent the defendant. Douglas Adams took over the case and obtained the records of the case from former counsel which included the defendant's mental health history.
Prior to trial in November 2000, the defendant wrote Adams four letters, which were partially incoherent. Adams described the following letter, dated September 15, 2000, as "very close to incomprehensible":
"Now on this day Completivil Larry Davis Lawyer Appointed by the Sedggwick County Court: I makeing a motion For a maisstrial and a number of Post Phometrist and Detainners and Continunesse With Detainnerses that this Cass Distrc county court Falones casse From 29th 1999 29-2,000 HAS not reach the true Court with the proper Attorney Lawyer Criminel Not no Assessntis Deffend. If this is'nt over Ate then what it's sayin in the Gennenreal Entree is tru About judgv Owen thougt up a plan for me a Ohpretion Doc or Releass I would like to be Realses I was told 2 time this was in the Computer Gennarail Entree
"Come and see me Are if not Im sooner with whate it said in the Genarail Etree."
Some of the letters demonstrated confusion about his defense. On October 1, 2000, the defendant wrote: "I would like to be acquitil couse of resoion of insanity mentily ill and that I may(?) not rsponsabel for myself . . . ." On October 26, 2000, the defendant wrote: "I'm not crazy like the D.A. and you trying to make me. I know this case is bullshit! Any lawer right out of school, could win this case." On November 3, 2000, the defendant wrote: "I like for you to use me being acquittle with defamation of capacity and be civiley cometeded like to Ohwsawaterme Stat Hospital leis than 90 days and then back to condioneal releases."
Following the defendant's trial and the remand from the Court of Appeals, Adams testified at the Van Cleave hearing that he had no training in psychiatry, psychology, or in conducting mental health or competency evaluations. He admitted that he had reason to doubt the defendant's competency prior to trial based on the reports and the fact that the defendant had been found incompetent at least 6 or 7 months prior to going to court. Adams said that he would have sought another evaluation if he knew that the defendant was not complying with his medication regimen in jail, but he did not check with the jail to make this determination.
Adams indicated that the defendant was able to assist in the preparation of his defense and that he was better at certain times than others. The defendant communicated with Adams on several occasions and seemed to understand the roles of the major courtroom personnel. Adams admitted that he had no idea what level of doubt was necessary for him to seek a competency evaluation. Adams described the defendant before trial as "somebody that was on the cutting edge," and seemed to him that "at any time he could be a person that could go through a competency evaluation." Adams opined that he "just maybe missed the signs" and, after hearing Dr. Grinage's testimony, the defendant "should have probably had another evaluation."
The bench trial was held on November 9, 2000, before District Judge Joseph Bribiesca. At trial, the defendant again evidenced some confusion about his defense:
"Q. [By Prosecutor] Isn't it true what you want us to believe is that you didn't commit this crime because of your mental illness
"A. No. No. No. No. No. My mental
"Q. --is that right?
"A. My mental illness has nothing to do with this. Like I say, two--three-- two--three wrongs don't make a right."
. . . .
"Q. [By Prosecutor] So you knew what you were doing that night, correct?
"A. Well
"Q. Yes or no?
"A. No. No, I don't think I really did. I don't think I really did. Some-- sometimes, like I say, I'm schizophrenia. Like I say, I was kind of
"Q. So you didn't know what you were doing that night?
"A. I don't--like I said, I don't know. Like I said, what some of 'em probably say could be right. But, like I say, some ways I was--I was going and coming when the police got there especially."
After the Court of Appeals remanded for a Van Cleave hearing, appellate counsel engaged Dr. Bradley Grinage, the director of forensic psychiatry at the University of Kansas School of Medicine in Wichita, to evaluate the defendant's competency at the time of trial. On May 3, 2002, Dr. Grinage conducted a nearly 3 hour clinical interview and mental status examination of the defendant.
Dr. Grinage noted that the defendant had been found competent to stand trial after 2 months of medication in a highly structured inpatient psychiatric ward at Larned, but after the defendant was returned to the Sedgwick County Jail in April 2000, he was described as being noncompliant with medications and was experiencing ongoing auditory hallucinations that worsened in August 2000. This was important because virtually every time the defendant had been noncompliant with his medication in the past, he decompensated, became violent and aggressive in his psychotic state, and was not able to care for himself.
Dr. Grinage opined that the mood and nature of the letters the defendant sent to Adams before trial "reflected a lability of mood consistent with mania, which is associated with schizo-affective disorder." The jail records also noted that the defendant had a very low, normal Valproic level in his blood when he was returned to jail prior to trial. When he had been given medication to increase his Valproic level while at Larned, his mental state had improved.
Before allowing Dr. Grinage to express his opinion on the defendant's competency to stand trial, the court noted the doctor's comment that it was unusual to evaluate a defendant's competency for a time period in the past. The court instructed counsel to lay a foundation of whether it was a generally accepted psychiatric method to evaluate a person's competency for a specific time in the past and also questioned the doctor. Dr. Grinage's competency evaluation report concluded:
"At the time of his trial, it appears that the defendant had sufficient understanding of the nature and purpose of the proceedings against him. However, based on the information obtained in the course of this evaluation, it is the opinion of the examiner that, at the time of the trial, the defendant was suffering from a mental illness or defect such that his capacity to consult with his lawyer with a reasonable degree of rational understanding was significantly compromised. The opinion that the defendant lacked the capacity to make or assist in making his defense is based on a lengthy history of treatment resistant paranoia, documented medical noncompliance associated with increased psychotic symptoms in the jail, trial transcripts depicting the defendant's paranoid thought process and difficulty tracking conversation, and persistent psychotic symptoms noted after the trial."
The State did not present an expert to contradict this evidence at the Van Cleave hearing.
The defense argued that Adams was ineffective by failing to seek another competency evaluation based largely on the testimony of Dr. Grinage, but the district court rejected this argument, reasoning:
"Dr. Grinage is of the opinion that Mr. Davis was not competent to stand trial at the time of trial, nor was he able to form the requisite criminal intent at that time of the crime on account of suffering from a mental disease or defect, namely, schizo-affective disorder, bipolar type. The Court finds that based on Dr. Grinage's testimony, he himself stated that he basically agrees with Dr. Logan's examination findings with the exception of the two critical issues before the Court: namely, competency and ability to form criminal intent. In the Court's opinion, a difference of opinion between two experts under the present circumstances is insufficient to meet the defendant's burden under Chamberlain [v. State, 236 Kan. 650, 694 P.2d 468 (1985)]. In the Court's opinion, Dr. Grinage's opinion is not controlling, nor is it entitled to any more weight than Dr. Logan's or Dr. Policard."
The defendant argues on appeal that counsel was ineffective in failing to seek another competency evaluation prior to trial. The Court of Appeals' majority opinion specifically noted the change in the defendant's previous competency evaluations and the letters the defendant wrote to defense counsel prior to trial which indicated his confusion about his mental state. It also pointed to defense counsel's own testimony that although he doubted the defendant's competency and probably should have requested another evaluation prior to trial, he failed to investigate the issue any further by checking with a mental health professional or by inquiring into whether the defendant had been taking his medication. The court concluded that it was clear from the record that defense counsel should have requested another competency evaluation prior to trial. However, the court did not find the required prejudice:
"We begin by noting that the trial at issue here was to the bench. It is clear that the trial judge was aware of the proper standard for the diminished capacit